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Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2009

My Lords, I thank the Minister for introducing these regulations. I must declare an interest as a farmer and grower whose business may be affected by the regulations in one way or another, even though there are exemptions for agriculture. I listened with care to the presentation of the background to these regulations. In general, we understand the reason for their introduction. We have some sympathy with the strategy and welcome the exemptions. However, I have a large number of detailed comments and questions, and I hope noble Lords will forgive me if I rather exceptionally give the pedantic side of my nature a stroll this evening. Much of the forensic work on this has been done by my researcher, but I received letters from the British Metals Recycling Association and the Community Composting Network. I noticed the Minister made special mention of these two elements. Their involvement and concern is interesting as it indicates that although what they do is currently seen as virtuous, and is encouraged by the Government, they are anxious about the impact of the regulations. The metal recyclers are concerned that these regulations will reduce capacity and increase costs and burdens for no public or environmental benefit. The CCN is rightly concerned about the impact on community food waste composting schemes. These prize-winning schemes are now obliged to pay for the most expensive permits. I shall not go into the detail of their letters because, from the way in which he introduced the regulations, the Minister is aware of this subject area. I hope it may be possible to revisit them in the interests of allowing the small-scale operations of the Community Composting Network to continue without unnecessary burdens. The regulations come into force on 6 April 2010, which is some time ahead. Are the Government expecting difficulties? Are there any hidden nasties that they are likely to have to deal with? The document is complex and amends a number of previous permitting regulations. It is difficult to follow. There is no contents page or separation of the major chapters. Page 6 contains the place for the signatures to the regulations and the start of Schedule 2. Page 12 has a main heading, "Schedule 2", and the start of Schedule 3. Page 51 has the end of Schedule 3 and the start of Schedule 3A. The presentation is not easy on the eye. The Government talk about light-touch regulation, but this is heavy-going regulation. I shall go through the regulations page by page. On page 2, Regulation 2 amends Regulations 3 to 12 of the 2007 regulations. That is an interesting observation. On page 4, do the final two lines under the table mean that Schedule 3 to the regulations currently in place will be succeeded by these regulations on 6 April 2010? Midway down the page, there is a line: ""‘previous Schedule 3’ means Schedule 3 to these Regulations as it had effect on 5th April 2010."."." It is confusing reading. I am not entirely sure whether "these" refers to the regulations before us or to the 2007 regulations. I note on page 4 the exclusion of mushroom compost from the list of excluded activities, which the Minister mentioned. Why have the Government done that? What is the reasoning behind it and have the Government considered the implication for mushroom producers of this change? On page 5, there is a mention in paragraph 12(2)(k) of the "appropriate authority" under the regulations. Who is the appropriate authority? There is no definition of what an appropriate authority is. Is it the Secretary of State, the Welsh Government, the Environment Agency or some other such body? There also appears to be some confusion on this page between the regulations of 2007 and 2009. When the regulations are consolidated, it would be useful if it were made clear to which previous regulations the text refers. I turn now to page 6. What is the significance of and meaning of the inverted commas before the words "Schedule 2"? They are not closed off anywhere and it seems a rather strange compositional idea to have included them in the text. Paragraph 1 refers to the waste mobile plant, which, ""has the meaning given in regulation 8(4)"." Where is regulation 8(4)? It certainly does not exist readily for me to be able to point it out within these regulations. There is also a question about the whole business of the relevant authority. What sanctions apply in the case of invalid registrations? Who will carry forward the failure to register an exception? Apparently, it is the local authority in whose area the operation is first carried out. Can that always be proved or demonstrated? It must be quite difficult to police and local authorities may have difficulty in operations that spread over local authorities. At the bottom of page 7, the regulations state: ""The information in this sub-paragraph is the name and business contact details of an individual officer or employee designated by the establishment or undertaking to be the primary contact for the purposes of registration"," which is obviously trying to pin the registration to a particular individual. I am sure that the Minister will understand why that is there, but it will lead to an awful lot of bureaucracy if individuals change and the responsible person changes within an organisation. Would it not be better to make it possible for people to be designated not only by name but by function within an organisation? Turning to page 8, new paragraph 7(2) states: ""Any other registration is valid until the end of validity of the first registration made in relation to the establishment or undertaking"." Are registrations time-limited? What is the meaning of the "end of validity"? I have read and reread that and cannot work out where that phrase fits in and to what it refers. The, ""Register of exempt waste operations"," on page 9, is something that we support. We believe that it is necessary within the framework of regulation such as this to have exemptions, but: ""The exemption registration authority must ensure the register"," contains the relevant particulars, ""within 5 working days of the date that it receives"," from an establishment an undertaking to be registered or renew a registration. There are not many activities within the local authority that are time-limited to five working days. Why is this particular thing so important that such an exceptional timetable should be imposed? I am all in favour of efficiency, but the administration of this may put a lot of local authorities under considerable pressure. A lot of work is involved in registering these exemptions. On page 10, there is reference to the matters affecting national security, which it is right and proper should be a consideration. Under Regulation 11(4) for the first time and, subsequently, under paragraph (6), there is a reference to a person. Who is this person? Is it any person or a significant person? Is it a person of authority; in which case, what authority? Could it be the person next door? This rather strange phraseology is lacking in precision as to the nature of the person. How many of these exemptions have been thought likely to occur? If the Environment Agency has to deal with more than 300,000 septic tanks—the Minister and I debated the whole business of registration of septic tanks—we know that there will be many more as a result of these regulations. It is a major bureaucratic task, particularly if it is to be done properly and efficiently. Paragraph (12) requires people to record, in the case of an exempt waste operation, ""the quantity, nature, origin and, where relevant, the destination and treatment method of all waste disposed of or recovered in the course of that operation"." If this is supposed to apply to farm waste, what is this? Is it cart loads or weight? Surely, the Minister does not really anticipate that farmers will have to go to a weighbridge to weigh the muck before they put it on the field or the packing house waste before they replace it. I cannot imagine that that is the case. Unless record keeping is done for a particular purpose, it can often become abused. It either has to be done properly or not at all. It is hard to see how this regulation can be done with any precision, in which case it might be better not to bother to try to do it. Under Regulation 13, records will have to be inspected. It states: ""Every exemption registration authority must carry out appropriate periodic inspections of establishments and undertakings carrying on exempt waste operations in respect of which it is the … authority"." That could be a very large number of establishments. Where are the personnel coming from? Are there not already enough inspections on farms, for example? I turn to page 12 to discover another pair of inverted commas before Schedule 3. I mentioned inverted commas before in connection with Schedule 2. Then I came to page 14, which refers to waste lagoons. Why would the public want access to a lagoon, slurry pit or down? It says that the public should not be able to obtain access to the waste. If the lagoon or pit is on the farmer’s property or behind a fence or wall, the public cannot be said to have access in any legal sense. Will that be sufficient? Here it does not say "legal access"; it refers only to access to the waste. That could be held to be a very different thing. Who is going to pay for the closing of these storage areas? At the bottom of page 14 and the top of page 15, there is a very untidy bit of printing. There is a line at the bottom of page 14 and an open space at the top of page 15; the composition of it is not particularly good. On page 15, Table 1, code 020103, why is plant tissue waste and dredging spoil included in a table that is otherwise devoted to inert material? There are several references, other than those mentioned in 170505, but I have been unable to find 170505 in any other table in the regulations. Does it exist? Perhaps the Minister will tell us what it refers to. On page 16, paragraph U2, code 160103, why is there a limit of 50 tonnes on the amount of baled tyres when the top of page 19 refers to 40 tonnes of tyres when they are in a retaining wall? Page 19 refers to having 40 tonnes of end-of-life tyres. That seems a bit inconsistent; I cannot understand why 50 tonnes is considered to be okay in one place and 40 tonnes is the quantity in another. That rather suggests to me that some of these figures have been plucked out of the air, rather than reasoned. I turn to the burning of waste, such as timber, in paragraph U4 at the top of page 17. There is a plant in Troon; I understand that Scotland is not part and parcel of these regulations, but I know of a yard that accepts all the cut timber from Arran, takes of the bark and trims the side branches and then planes or logs the trunks and has heaps of different kinds of processed wood in a huge yard, protected by a chain-link fence with double gates and a lock. The flood bank between it and the sea is higher than the piles of wood probably 50 yards away and used by the populace to walk their dogs and push their prams. Would that situation be considered secure? If not, are the Government calling for small-scale operations to be run on tighter or higher standards than commercial ones? It says that waste should be stored in a secure place, but how will that be defined? I note, too, that 0.4 megawatts is the standard for which exemptions will apply, but why has that figure been chosen? Why is it not 1 megawatt or 0.25 megawatts? It will be only a small-scale operation if it can use only a maximum of 50 kilograms an hour, as it says in paragraph U4(3)(a) on page 17. Page 18 refers to reseeding waste water treatment plants. Under paragraph U6(3)(b), the specific condition is that, ""the waste was not produced at the plant"." Does it have to be moved and fresh brought in? Why is it that the waste produced at the plant cannot be used for reseeding? I have mentioned the whole question of tyres, on page 19. I notice the enormous differential between stones and bricks capable of being used in their existing state only—in other words, heaps of building materials—which are limited to 100 tonnes in a pile, and blast furnace slag and stones only, for which the figure is 50,000 tonnes. Surely these materials are essentially very similar, yet the variation in the amount of material that is allowed to be stored in one place is considerable. We saw the quantity of mushroom compost allowed earlier, and here we have 1,000 tonnes of mushroom compost able to be stored. I wonder how all these figures are tied up and who has gone through and audited them to make sure that there is a certain rationale behind them all. Perhaps the gem in these regulations is on page 20, already referred to by the Minister, about lion faeces. The Minister has handled many things for this Government. I should think that this is the first time that he has found himself having to handle lion faeces and argue why it should be limited to five tonnes, whereas sheep, rabbit or deer faeces can be limited to 100 tonnes. Where is the logic in this? Does the lion limit relate to the ferocity of the beast when compared with the rabbit? How were these figures calculated and why did the Government see them as different? Are there any other animals? These are just four animals out of the animal kingdom that happened to find themselves distinguished by being mentioned in these regulations. I had a lot more that I could say, but I do not really want to carry on going through this in detail. I hope that I have made the point that there are inconsistencies in the Statutory Instrument that need to be addressed. These are real concerns to the many enterprises working in this area who may well find themselves on the wrong side of these regulations. I hope that the Minister will be able to satisfy us that his department will be looking at them before they produce the consolidated regulations, which I understand will be early in the new year. I wonder what will be added, amended or deleted, and how easy it is going to be for noble Lords looking at them again to understand them. I hope that the presentation of the new Statutory Instrument will be a good deal more straightforward than the current one. I hope that I have adequately drawn the Grand Committee's attention to what I see as the arbitrariness in these regulations. My main question is whether the waste directive requires the maintenance of a register of those carrying out exempted waste recovery or disposal operations, because that is a heavy duty that is being imposed on people who are by definition exempted. I have very serious doubts about the ability of local authorities and the Environment Agency to maintain a register in accordance with the terms laid down without having to spend a lot of money, which we know is not there. I have even greater doubts that these regulations actually serve the public interest, but I have no doubt that they will greatly increase the regulatory burden on the vital recycling industry.